The Islamic Influence in (Pre-)Colonial and Early America- A Hist_2

Barry University School of Law Digital Commons @ Barry Law Faculty Scholarship 2014 The Islamic Influence in (Pre-)Colonial and Early America: A Historico-Legal Snapshot Nadia B Ahmad Barry University Follow this and additional works at: https://lawpublications.barry.edu/facultyscholarship Part of the Common Law Commons, Constitutional Law Commons, Law and Race Commons, Legal History Commons, and the Religion Law Commons Recommended Citation Nadia B Ahmad, The Islamic Influence in (Pre-)Colonial and Early America: A Historico-Legal Snapshot, 12:3 Seattle J for Soc Just 913 (2014) This Article is brought to you for free and open access by Digital Commons @ Barry Law It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons @ Barry Law 913 The Islamic Influence in (Pre-)Colonial and Early America: A Historico-Legal Snapshot Nadia B Ahmad* ABSTRACT Islam only became a focal point of the national conversation post-9/11 despite being a force in the New World for 500 years The Muslim presence in the Americas began at least since Crist6bal Col6n's maiden sea voyage, in which many Moors accompanied him in 1492 This article will consider Visiting Assistant Professor of Environmental Law at Pace University School of Law LL.M in Natural Resources and Environmental Law and Policy, University of Denver Sturm College of Law; J.D., University of Florida Fredric G Levin College of Law; B.A., University of California, Berkeley The author owes a debt of gratitude to Robert H Jerry, II, Berta Esperanza Hernindez-Truyol, Juan Perea, Sharon Rush, Terri Day, Kathryn Russell-Brown, Kenneth Nunn, and the staff of the University of Florida Fredric G Levin College of Law's Center for the Study of Race and Race Relations for their insightful comments and vigorous dialogue as well as encouragement and support and to Shaykh Hamza Yusuf Hanson, Hatem Ahmad al Bazian, Ananya Kabir, Pheng Cheah, Judith Butler, Felipe Guttierrez, Cecilia Van Hollen, Rali Konstantinova, Michael Lucey, Aga Saeed, Ameena Jandali, Maha Elgenaidi, Nadira Mustapha, Irfana Hashmi, Nader Hashemi, Altaf Husain, Ahmed Bedier, Christine Harding, Kristin Hoffmann, Kevin Nicholas, Dean Rhoads, Andy Denicole, Jane Jones, Georgia Parker, Sue Speicher, Joyce Vierling, Ronald Vierling, Meg Allen, Jamie Torres, Derek Okubo, Fadumo Adan, Eman Beshtawii, and Amira for sowing the seeds of this research Special thanks to Catherine Smith, Nancy Ehrenreich, Tayyab Mahmud, Spearit, Liaquat Ali Khan, Margaret Kwoka, Cyra Choudhury, Hari Osofsky, Jaime Lee, Nancy Leong, Sahar Aziz, Chaumtoli Haq, and the editors and staff of the Seattle Journalfor Social Justice, in particular Elyne Vaught, Kelli Rodriguez Currie, Isaac Guzman, Zach Haveman, and Rebecca Fish This article has benefited from presentations and discussions at the Society of American Law Teachers (SALT) Teaching Conference and LatCrit/SALT Junior Faculty Development Workshop at the University of Maryland Francis King Carey School of Law in 2012 and "The Forgotten Roots" Conference at the University of California, Berkeley in 2000, sponsored by the then Zaytuna Institute (now Zaytuna College) and the University of California, Berkeley, African American Studies Department, Near Eastern Studies Department, and the Graduate minority students project A note of appreciation to Akmal, Senan, Hanan, my parents, siblings, aunts, uncles, and cousins This article is dedicated to the youth of Newtown, Connecticut, for their courage and resiliency to overcome and to the memory of the late Derrick Bell 914 SEATTLE JOURNAL FOR SOCIAL JUSTICE how Islam impacted slave and indigenous populations along with European explorers and later settlers Synthesizing the development of Islam and Muslims in the interplay of these relationships will illustrate how threads of Islamic thought and culture streamed into early American legal and cultural norms Scant research on Islam in pre-US Constitution America exists, but, given the current influx of anti-Muslim sentiment, a look at this hidden history will elucidate the Islamic and Muslim influence on early American law, policy, and culture as a historico-legal counter-narrative This article asserts a paradigmatic shift so that Islam is seen less as a foreign, marauding force and more as an early collaborator in the shaping of American notions of justice, democracy, and freedom and as a harbinger for the call to American independence, slave resistance, and revolt The LatCrit analytical modalities offer a means for reassessing this hidden history and realigning critical Islamic legal analysis into a broader theoretical framework for coalition-building TABLE OF CONTENTS Introduction 915 917 920 What is an American Muslim? II Updating the Academic Curriculum III Pre-Columbian Presence of Africans and Muslims 922 926 IV Slavery and Religion V Impact of Literacy among Muslims 930 932 VI Influence of Shariah Law in America VII Cowboys And Vaqueros: Imported from the Moors 937 VIII Absence of Islam in American History and Legal Texts 938 Final Remarks 944 LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand Early America 915 INTRODUCTION "We didn't landon Plymouth Rock, the Rock was landed on us - El-Hajj Malik Al-Shabazz, (Malcolm A) This statement can be connected not only to the origins of African Americans, but also to the identity of American Muslims Plymouth Rock, which Al-Shabazz was referencing, is an American icon on par with the Statue of Liberty on New York's Ellis Island According to tradition, in December of 1620 the band of English Pilgrims sailed across Massachusetts Bay to anchor in Plymouth Harbor; they could not have missed seeing a huge boulder at the edge of the deep channel The boulder-Plymouth Rock-may even have provided their landing point.4 For Native American rights activists though, Plymouth Rock serves as a symbol of the wars waged against their ancestors soon after the Pilgrims' landing Native American rights activists have ceremoniously buried it twice, first in 1970 and then again in 1995, as part of the National Day of Mourning, protesting against the US celebration of Thanksgiving and against the Pilgrim's Progress Parade Al-Shabazz's evoking a re-imagination of the Plymouth Rock narrative is apt for understanding the exegesis of Islam in America Islam may have spread rapidly among Native American populations, particularly among the MICHAEL BENSON & MARTHA COSGRAVE, MALCOLM X 56 (2005) AMINA WADUD, American Muslim Identity: Race and Ethnicity in ProgressiveIslam, in PROGRESSIVE MUSLIMS ON JUSTICE, GENDER, AND PLURALISM 270 (Omid Safi ed., 2003) The terms American Muslim and Muslim American can be used interchangeably Id The distinction in usage can be attributed to the emphasis on either the American or Muslim components of personal identity Id Sargent Bush, Jr., America's Origin Myth: Remembering Plymouth Rock, 12 AM LITERARY HIST 745, 745 (2000) Id WORKERS' WORLD, Native People Bury Racist Rock, THE PEOPLE'S PATH (Dec 7, 1995), http://www.thepeoplespaths.net/articles/plymouth.htm See id VOLUME 12 * ISSUE * 2014 916 SEATTLE JOURNAL FOR SOCIAL JUSTICE Iroquois and the Cherokee, as African and European Muslims arrived in the New World.7 Meanwhile, as many as one-fifth of all slaves introduced to the Americas from Africa in the eighteenth and nineteenth centuries were Muslim.8 Despite being a force in the New World for 500 years, Islam only became a focal point of national conversation following the events of September 11, 2001.9 The Muslim presence in the Americas began at least since Crist6bal Col6n's 1492 maiden sea voyage, in which many Moors accompanied him This article will consider how Islam impacted slave and indigenous populations in America, along with European explorers and later settlers Synthesizing the development of Islam and Muslims between these relationships will illustrate how threads of Islamic thought and culture streamed into early American legal and cultural norms Scant research on pre-US Constitution Islam in America exists Given the current influx of anti-Muslim sentiment, a look at this hidden history elucidates the Islamic and Muslim influence on early American law, policy, and culture as a historico-legal counter-narrative This article advocates a paradigmatic shift so that Islam is seen less as a foreign, marauding force and more as an early collaborator in the shaping of American notions of justice, democracy, and freedom Islam served as a harbinger for the call to American independence and for slave resistance and revolt The LatCrit analytical modalities for critical race studies offer a means for reassessing this hidden history and realigning critical Islamic legal analysis into a broader theoretical JERALD F DIRKS, MUSLIMS IN AMERICAN HISTORY: A FORGOTTEN LEGACY 195- 218 (2006) Yvonne Y Haddad, A Century of Islam in America, in THE MUSLIM WORLD TODAY, (1986), available at http://www.jamaat.org/new/library/islamic%20history%20english/A%20Century%200f %201slam%20in%20America.pdf See id '0 See id LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand Early America 917 framework Although seafarers from Africa and Asia also sailed to the Americas, they were never anchored into history textbooks." WHAT IS AN AMERICAN MUSLIM? The terms "American" and "Muslim" are often merged together to describe the distinct community of individuals of Muslim faith in the United States.12 The phrases "American Muslim" and "Muslim American" have increasingly been used in mass media and academic circles, but the phrases incorporate a wide spectrum of the ethnic, linguistic, and social strata based on changing demographics of Muslims in the United States.13 Amina Wadud emphasizes this diversity among Muslim Americans: Overwhelmingly, Americans are composed of immigrants who came to America's shores by choice While identifying with their previous cultural heritage, they want something here in America They relish the possibilities of establishing a new identity within the complexity of American pluralism This new identity integrates the dual components of previous culture and American citizenship 14 The cleavage between what constitutes a Muslim and an American is based not only on religious and national identities, but also on cultural and legal definitions I argue that the Muslim American experience is interwoven with ethnic, sexual, immigrant, and modernist axes The multidimensionality of the Muslim experience is not considerably different than those of other immigrant groups and individuals It is at this " JAMES W LOEWEN, LIES MY TEACHER TOLD ME: EVERYTHING YOUR AMERICAN HISTORY TEXTBOOK GOT WRONG 49 (2007) 12See.generally Rhys H Williams & Gira Vashi, Hiab and American Muslim Women: Creating the Space for Autonomous Selves, 68 SOc OF RELIGION 269 (2007) The terms "American Muslims" and "Muslim Americans" are interchangeable Id at 270, n.2 However, there is a difference in implications The connotation of the former term is that "Muslim" is the main identity, and "American" is the qualifier adjective Id WADUD, supra note 2, at 270 14 See id VOLUME 12 * ISSUE * 2014 918 SEATTLE JOURNAL FOR SOCIAL JUSTICE intersection of race and religion where LatCrit methodological approaches can add deeper discussion as a scholarly intervention to include religious identity in the critical race model Elizabeth M Iglesias and Francisco Valdes define multidimensionality as "the practice of interrogating sociolegal conditions with an eye toward the many overlapping constructs and dynamics that converge on particular persons, groups, settings, events or issues."' Multidimensionality builds on prior theoretical breakthroughs, including multiplicity, intersectionality, and anti-essentialism Long after African slaves were brought to these shores against their will, and even after the abolition of slavery in 1865, African Americans continued to be "battered by longstanding discrimination, new methods of torture, and the installation of fear."" The axes of race and religion have run parallel at times and at other times they have collided, since early America to the present day Islamic fundamentalism replaces communism as the principal perceived threat to Western reason and democracy Based on this shift, Jane Collier argues, "sociolegal scholars may incur a special obligation to analyze the historical processes that constructed the cultural opposition between 'our' supposed rule of law and 'their' imagined religious fanaticism."'" She adds: 15 Elizabeth M Iglesias & Francisco Valdes, LatCrit at Five: Institutionalizing a PostsubordinationFuture, 78 DENV U L REV 1249, 1267 (2001) 16 Id Iglesias and Valdes assert that multidimensionality "calls for a profound and farreaching recognition (of the convergence of) particularities (like) religion, geography, ability, class, sexuality and other identity fault lines that run through, and help to configure and to interconnect, all 'racial' and 'ethnic' communities." Id They explain,"[b]y multidimensional analysis we thus mean to evoke (1) a scholarly mindset, (2) an analytical approach and (3) a programmatic commitment to anti-subordination discourse and action without boundaries or borders-including not only the borders of regions, cultures and identities but also those of discipline and perspective." Id Berta Esperanza Hernindez-Truyol, Narratives of Identity, Nation, and Outsiders Within Outsiders: Not Yet a Post-Anything World, 14 HARV LATINO L REV 325, 326 (2011) 18 Jane F Collier, Intertwined Histories:Islamic Law and Western Imperialism, 28 LAW & SoC'Y REV 395, 395 (1994) LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand Early America In the coming new world order of nationalist struggles and ethnic confrontations, sociolegal scholars may not be able to remain silent, for if we fail to explore connections between Western and Islamic legal systems, we only contribute to media stereotypes of Islamic law as regressive and feudal and of Islamic political activists as religious fanatics.' Collier's interpretation looks at how connections between Western and Islamic legal systems can be transformative as considered in the context of LatCrit's multidisciplinary approach to law and social justice.20 The presence of Islam in the Americas goes as far back as the Europeans' landing on Americas' shores This reality can be disconcerting to those harboring negative views of Islam This article calls for a shift in the dominant paradigmatic understanding of Islam in America as an alien religion Why are paradigms significant? Among other reasons, paradigms control fact-gathering and investigation As such, data-gathering efforts and research seeking to understand the facts and circumstances of a group are important.2' Juan Perea argues, "paradigms are crucial in the development of science and knowledge because, by setting boundaries within which problems can be understood, they permit detailed inquiry into these problems." 22 From this perspective of why paradigms matter, LatCrit is instructive in the early Muslim American experience because of LatCrit's community building aspirations Historically, LatCrit theory has sought to center "in legal discourse (a) Latinas/os qua Latinas/os, (b) multiple internal diversities, and (c) the schematics and dynamics of cross-group relations '9 20 Id See id 21 Juan F Perea, The Black/White Binary Paradigmof Race: The "Normal Science" of American Racial Thought, 85 CAL L REV 1213, 1216-17 (1997) 22 Id VOLUME 12 * ISSUE * 2014 919 920 SEATTLE JOURNAL FOR SOCIAL JUSTICE and inter-group coalitions."23 For the purposes of LatCrit communitybuilding aspirations, these efforts have encompassed "a conscious and conscientious dedication to community-building ideals and practices in both individual and structural terms This fragile experiment has yielded promising advances to date." 24 Given the track record of the LatCrit scholarly community to achieve advances in theories of multidimensionality and critical projects that theorize sociolegal identities, this discussion of early American Islamic identities ties into LatCrit community-building aspirations The next section addresses the historical paradigm of the European presence in the Americas and how that paradigm conflicts with the preColumbian presence of Africans and Muslims in the Americas Challenging the narrative of an incomplete history of Muslims in America is crucial for evaluating Islam today An inadequate historical narrative undermines the Muslim contributions to early America Past events, such as those in the period of colonial conquest and control, offer insights into processes of resistance to the acceptance of Muslim Americans.25 II UPDATING THE ACADEMIC CURRICULUM American history is incomplete without exploring the entire Islamic influence on it Academic textbooks should reflect the role Muslims had in establishing this nation and its legal scholarship Schools and universities must include Islam in their American history and law curricula to provide 26 an objective viewpoint The University of California at Santa Barbara, Elizabeth M Iglesias & Francisco Valdes, Expanding Directions, Exploding Parameters:Culture and Nation in LatCrit CoalitionalImagination, MICH J RACE & L 787, 793 (2000) 24 Id 25 Sally Engle Merry, Law and Colonialism, 25 LAW & SOC'Y REv 889, 890-91 (1991) 23 Prof Kathleen M Moore, Islam in America RELST 140: Course Description, UNIV OF CAL AT SANTA BARBARA, DEP'T OF RELIGIOUS STUDIES, http://www.religion.ucsb 26 edu/syllabus/RSl40E.pdf (last visited Apr 18, 2014) (see first paragraph) LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)Colonial and Early America 921 Georgetown University, 27 Utah State University,28 University of Illinois, 29 and other institutions of higher learning across the country have been offering courses on Islam in America These types of courses can be taught elsewhere as well, but certain components of these courses must change at a fundamental level to remedy the harms caused by Islam's erasure from American history In the pedagogical acts on Islamic law, the reading materials assigned to the students tend towards a particular construction of "Islamic law" that ultimately produces what Lama Abu-Odeh describes as a "fantasy effect": The fantasy is to the effect that Islamic law is a foundational category for anyone attempting to understand law in the Islamic world Its modus operandi is a rhetorical slippage given effect to by the readings that gradually and almost imperceptibly substitutes "Islamic Law" for "Law in the Islamic countries." The consequence? The European legal transplant in the Islamic world is never seriously explored or theorized in these materials If referred to, it is either in its moment of arrival as a foreign import, or in its moment of fantasized departure as a thing to be displaced and replaced with something more authentic: "Islamic law." Its absence from the materials as the positive law of the Islamic world, that informs its codes, treatises, law reports, legal institutions, and legal curricula in law schools is striking This produces the paradoxical phenomenon that, whereas in most other regions, scholars are typically invited to pay attention to law outside of positive law In the Islamic world one has to the opposite: call 27 Zahid Bukhari, INAF-391 Muslims in America, 2009-2010 Course Catalog, GEORGETOWN UNIV., DEP'T OF INT'L AFFAIRS, http://courses.georgetown.edu/index.cfm ?Action=View&CourselD=INAF39 I&AcademicYear-2009&AcademicTerm=FallSprin g (last visited Apr 18, 2014) (see first paragraph) 28 Nuri Tenaz, Islam in America HIST 4910, UTAH STATE UNIV., DEP'T OF HISTORY, (see paragraphs 1-2) 29 Junaid Rana, Muslims in America (AAS 258, LLS 258, RLST 258), Course Description (2009), UNIv OF ILL AT URBANA-CHAMPAIGN, DEP'T OF AM ASIAN STUDIES, http://www.eui.uiuc.edu/docs/syllabi/AAS258SO9.pdf (last visited Apr 18, 2014) (see first paragraph) VOLUME 12 * ISSUE * 2014 932 SEATTLE JOURNAL FOR SOCIAL JUSTICE rebellious slaves managed to escape to the mountains, where they formed independent maroon communities Large numbers of the newly imported slaves also fled to the treacherous mountain ranges in the island's interior, joining the growing number of Cimarones By the 1530s, Cimarron bands had become so large that in rural areas the Spaniards could only travel safely outside their plantations with armed groups VI INFLUENCE OF SHARIAH LAW IN AMERICA The most crucial remnant of Islam in America is the influence of Sharia or Islamic jurisprudence on the democratic ideals of the Founding Fathers in creating the Union and in drafting the United States Constitution Islamic law is one of the three major legal systems of the world following common law and civil law systems.80 The greatest impact Islam had in the early Americas is the influence of Islamic legal principles on the drafting of American Constitution Actually, Muslims in Madinah under the leadership of Prophet Muhammad made the first written constitution in the world.8 ' The new leadership of the Islamic state recognized the significance of the policy of religious indoctrination, which they viewed as essential to achieving unity among the unruly tribal Arabs engaged in conquests 82 The need for religious indoctrination was felt during the caliphate rule of Umar I for implanting an Islamic religious ethic 83 To this end, the early caliphs built mosques in each garrison town, and deployed Quranic teachers and qadis (judges/arbiters) Their role was partly a continuation of the pre- See id ' See id 80 Hossein Esmaeili, The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World, 26 CONN J INT'L L 329, 329 (2011) 81 See generally WAEL B HALLAQ, THE ORIGINS AND EVOLUTION OF ISLAMIC LAW (2005), available at http://www.hadith-studies.com/Hallaq-Origins-Evolution-IslamicLaw.pdf 82 Id 83 Id LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand Early America 933 Islamic tribal practice of arbitration, since many of them had earlier functioned in this capacity, and the Arab tribes that fell under their jurisdiction were accustomed to this type of conflict resolution 84 That Islamic civilization lasted for so many centuries is significant Islamic civilization's success is attributable to "the existence of a rule of law that was sufficiently fixed to provide for rational calculation, yet sufficiently flexible to adapt to changing circumstances, with the balance of these factors determined outside the domain of the rulers, who had the greatest incentive and power to distort the balance to serve their own interests." 86 Islamic constitutional precedents played into the American constitutional debates When Alexander Hamilton argued for giving the federal government the right to impose taxes by referring to the example of the Ottoman Empire, he noted that the sovereign of that empire had no right to impose a new tax: In the debates of 1787, Anti-Federalists, using what they judged to be the example of the despotic Turkish government, argued against a strong central government, and demanded guarantees of individual liberties and religious freedom In particular, Daniel Webster, Patrick Henry and Patrick Dollard spoke of the evils of Turkish despotism Alexander Hamilton, on the other hand, saw deeper into the Turkish example, recognizing a complex power structure He argued that, from one perspective, the Turkish sultan was in fact weak and had limited powers Hamilton then concluded that a strong central government would protect people from 87 oppressive local governments Id Imad-ad-Dean Ahmad, American and Muslim Perspectiveson Freedom of Religion, U PA J CONST L 355, 365 (2006) 86 See id Azizah Y al-Hibri, Islamic and American ConstitutionalLaw: Borrowing Possibilities or a History ofBorrowing?, I U PA J CONST L 492,496-97 (1999) 85 VOLUME 12 * ISSUE * 2014 934 SEATTLE JOURNAL FOR SOCIAL JUSTICE Thomas Jefferson, George Washington, and other framers incorporated some Islamic principles into the American Constitution The idea of religious freedom and shura (decision-making by consensus), along with other legal rights, were drawn up in the Charter of Madinah by Prophet Muhammad Many European thinkers at the time of the American Revolution were incorporating the principles from the Charter of Madinah in their writings James Madison argued the legislative, executive, and judiciary branches should be separate and distinct; otherwise, the accumulation of these powers in the same hands would lead to tyranny.88 Liberal-minded Islamic jurists such as al-Mawardi were similarly inclined to adopt separation of power principles to ensure that the executive (the ruler or president) and the legislature (the shura council or parliament) effectively kept each other in check.89 The Constitution of Medina required the exercise of judicial authority, political rule, and religious interpretation to be subject to a consensus of the Muslim jurists 90 It was ratified through a process of mutual consultation (shura) to ensure the interests of the community would be taken into consideration before legislation was enacted 91This process is similar to the American principle of judicial review.92 Under the pact made between Muhammad and the people of Medina, non-Muslim communities were treated with respect and understanding." They were protected and permitted to live in accordance with their own laws and customs; the community chose its own rulers so long as they acted in accordance with 88 James Madison, The FederalistNo 47, in FEDERALIST PAPERS 234 (Terence Ball ed., 2003) 99 Ali lyad Yakub, The Islamic Roots of Democracy, 12 U MIAMI INT'L & COMP L REv 269, 279-83 (2004) See id 9' See id 92 See id 93 See generally Al-Hibri, supra note 87 LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand Early America 935 the tenets of Islam 94 The Constitution of Medina represents an early seventh century example of federalism.9 American judicial opinions about Muslims date from at least as early as the 1811 New York State Blasphemy case of People v Ruggles - where Islam was called an "imposter" religion to present day.9 Scholarly and popular representations of Islam and Muslims as antithetical to civil democratic society should be handled with care, as they "overgeneralize at the expense of the growing and diverse population of Muslims living in the United States." 97 While many in the public arena emphasize the United States as a place of unprecedented tolerance, some find it difficult to include Islam under the same umbrella, because it is an ancient rival to the Judeo- Christian heritage.98 Asifa Qureshi asserts, "[w]hat is striking about putting Islamic and American legal discourses side by side, is that many presumptions inherent in the different interpretive methods translate across cultures quite easily." 99 She adds that "when it comes to ways of thinking about textual interpretation, Muslim and American jurists following a given method often will have more in common with each other than with those of an opposite 94 ANTHONY SHADID, LEGACY OF THE PROPHET: DESPOTS, DEMOCRATS, AND THE NEW POLITICS OF ISLAM 248 (2001) Yakub, supra note 89, at 281 "Much like the federalists in America - among them Madison and Jefferson - who established our federal system of government, the Prophet in Medina created a sovereign nation-state with common citizenship It consisted of a federal structure, dividing governing power between a centralized authority and each of the various communities, with autonomy in social, cultural, and religious matters reserved to the individual communities so long as their actions comported with the clear teachings of the Qur'an." Id 96 KATHLEEN M MOORE, AL-MUGHTARIBUN: AMERICAN LAW TRANSFORMATION OF MUSLIM LIFE IN THE UNITED STATES x (1995) See id AND THE 98 See id Asifa Quraishi, Interpretingthe Qur'an and the Constitution:Similarities in the Use of Text, Tradition, and Reason in Islamic and American Jurisprudence, 28 CARDOzO L REv 67, 68 (2006) VOLUME 12 * ISSUE * 2014 936 SEATTLE JOURNAL FOR SOCIAL JUSTICE methodology in their own society."'0o The issue of what constitutes Islamic law is problematized by manifestations of the Islamic legal order being replaced by hybrid legal systems in independent states within the Muslim world These hybrid systems are a concoction of French and British codes, classical Islamic substantive law, and traditional customary law.' 0' In these nations, foreign codes tend to replace traditional civil and criminal laws, but not aside from family law - which was constructed from Islamic and customary laws.102 Lama Abu-Odeh explains, "Islamic law should be approached as one, but only one, of the constitutive elements of law that has not only been decentered by the [European] transplant but also transformed."'103 She is concerned that, not only have its rules been transformed, but so has its modes of reasoning and its jurist class.'" The conceptual organization of Islamic law "has been transformed by being reduced to a rule structure 05 positivized in a code and dependent on state enforcement." Western law contributed in significant ways (both obvious and subtle) to collateral cultural transformations of Islamic law resulting from colonialism and capitalist expansion European law instituted and enforced new relations of labor and land that undergirded the economic enterprises of the colonies Colonial authorities fostered the transformation of oral and flexible legal systems to written codes and required the construction of bureaucratic courts with formal procedures.' " See id 01 Intisar A Rabb, "We the Jurists": Islamic Constitutionalism in Iraq, 10 U PA J CONST L 527, 532-33 (2008) 102 Id at 533 103Abu-Odeh, supra note 30, at 823 See id Id 1o6 Merry, supra note 25, at 917 '07 See id '08 See id LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand Early America 937 Beginning with the middle of the 19th century, Islamic law had undergone a process of change that led to its virtual, if not total destruction.'o Happily, direct colonialism is a thing of the past (or so one hopes), and scholarship now appears somewhat freer from the cultural assumptions of domination."o It is readily acknowledged, nowadays, that Islamic law was not disjoined from the society that it served In fact, Islamic law was linked throughout society and responded to the challenges of social and economic change until its near-total destruction in the nineteenth and early twentieth centuries." Until recently, Western scholarship was all too ready to follow its normal pattern of disregarding Islamic history and culture VII COWBOYS AND VAQUEROS: IMPORTED FROM THE MOORS A very remarkable remainder of the Islamic influence in America is the origin of the cowboy and the vaquero Long time Chicano rights activist and social worker, Donald Gilbert Y Chavez, explains the Muslim origins of the All-American cowboy in his book, COWBOYS - VAQUEROS: Origins of the First American Cowboys The concept of the American western saddle was derived from the Spanish, the predecessors of the vaqueros."3 By the early Middle Ages, Christian northern Spain was influenced by several riding traditions: ancient Celtic, late Roman, early Gothic European, and Muslim."l Spain is credited with inventing the rowel spur by 900 C.E." By the time Spain had set sail for the New World in 109Wael B Hallaq, "Muslim Rage" and Islamic Law, 54 HASTINGS L.J 1705, 1711 (2003) Id ".See id 112 Donald Gilbert Y Chavez, Cowboys - Vaqueros: Origins of the First American Cowboys, N.M HISPANIC CULTURE PRESERVATION LEAGUE (2011), available at http://nmhcpl.org/uploads/CH6.pdf "' Id at 1I4 Id 11laId VOLUME 12 * ISSUE * 2014 938 SEATTLE JOURNAL FOR SOCIAL JUSTICE 1492, two basic styles had been adopted and brought to the Americas with the horse, a la estradiota and la jineta.116 Not surprisingly, the Spanish incorporated the vaquero concept from their Muslim conquerors: "The Moors successfully invaded Spain [in] about 710 C.E overrunning the country on light and very fast horses The Moslem cavalrymen rode a la jineta, with very short stirrups He was lightly armored and therefore extremely fast and mobile."" It is truly fascinating to see how much of an influence Muslims had on the Spanish as well as the Americans VIII ABSENCE OF ISLAM INAMERICAN HISTORY AND LEGAL TEXTS The Muslim presence in early America and its lasting impact are ignored in United States history The role of Muslims in the discovery of America is seldom explored." Many of the slaves who arrived in the Americas were transported to South America."l Those who were taken to the American colonies were for the most part quickly converted to Christianity.120 Very few vestiges of Islam remain from this period, with the exception of portions of the Quran apparently transcribed from memory; personal narratives passed down person-to-person; and archeological artifacts, including letters, books, and manuscripts.121 The omission of the significant impact of Islam in America from history books is so out of keeping with reality that the lack of information appears to be either deliberate or negligent Just as the history of African Americans, Indian Americans, and many immigrant groups is absent from mainstream publications, the Muslim contribution to America is unavailable as well S6 id id 117 "1 Haddad, supra note 8, at 120id 121For a discussion of portions transcribed from memory, see id LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)ColonialandEarly America 939 The prejudice against Muslims in academic scholarship is tantamount to the racism against blacks and other non-whites Why the history textbooks fail to include the Muslim discovery of the Americas? James W Loewen asserts: American history textbooks promote the belief that most important developments in world history are traceable to Europe To grant too much human potential to pre-Columbian Africans might jar European American sensibilities As Samuel Marble puts it, "The possibility of African discovery of America has never been a tempting one for American historians." Teachers and curricula that present African history and African Americans in a positive light are often condemned for being Afrocentric White historians insist that the case for Afro-Phoenicians has not been proven; we must not distort history to improve black children's self-image, they say They are right that the case hasn't been proven, but textbooks should include Afro-Phoenicians as a possibility, a controversy.122 It is educational malpractice to dismiss the claims of the Afro-Phoenician discovery of America, even if they are only possibilities In Slave Religion: The "Invisible Institution" in the Antebellum South, noted historian Albert J Raboteau barely devotes two pages to Islam among the American slaves.' 23 Raboteau introduces the topic of Muslim slaves by saying, "There were, moreover, a few Muslim slaves from Africa who continued, as best they could, to observe the customs of Islam."' 24 This limited space about Muslim slaves in America is problematic, given that Raboteau's book is a 382-page history volume devoted solely to slave religion and one-fifth of American slaves may have been of Muslim descent.12 ""Even the most conservative estimates calculate that ten percent 122LOEWEN, supra note 11, at 42 123ALBERT J RABOTEAU, SLAVE RELIGION: THE "INVISIBLE INSTITUTION" IN THE ANTEBELLUM SOUTH 46-47 (1978) 124 Id 125Haddad, supra note 8, at VOLUME 12 * ISSUE * 2014 940 SEATTLE JOURNAL FOR SOCIAL JUSTICE of African slaves were Muslim, placing their numbers at approximately 9.5 million;126 thus, "a few Muslim slaves," as Raboteau asserts, is a gross understatement Raboteau did not mention the burdens the slave masters imposed on Muslims and others that prevented them from following their religions It appears from the statement, "as best they could," that the slaves were not capable of practicing their religious customs There is no mention in the brief passage that the dehumanization inherent in slavery restricted the preservation of Islamic traditions.' 27 To further emphasize the anti-Islam bias inherent in Raboteau's scholarship, the book's portrayal of Islam appears to be mocking Muslim religious practices from an outsider perspective: 'Muh gran come from Africa,' remarked Rosa Grant of Possum Point, Georgia "Huh membuh when I wuz a chile seein muh gran Ryna pray Ebry mawnin at sun-up she kneel on duh flo in uh ruhm an bow obuh an tech un head tuh duh flo tree time Den she say a prayuh I dohn membuh jis wut she say, but one wud she say use tuh make us chillun laugh I membuh it was 'ashanegad.' Wen she finish prayin she say 'Ameen, ameen, ameen.'l28 Raboteau should have expounded on this narrative It appears that the author knows no more about Islamic religious practices than the granddaughter of the slave who was praying For the sake of informing the reader, Raboteau should have explained exactly the type of prayer that the grandmother was performing instead of glossing over it He should also have avoided the mocking tone in describing the narrative Despite the slave owners' callous efforts to convert the Muslim slaves to Christianity, many of the early African Muslims maintained their Muslim 126 PHILIP D.CURTIN, THE ATLANTIC SLAVE TRADE: A CENSUS 268 (1969) 127RABOTEAU, supra note 123 129 id LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand EarlyAmerica 941 faith in secret.129 Some slaves had memorized the entire Quran by heart and presumably could draw upon this knowledge, covertly if necessary Also, a number of slaves kept their African names, wore Islamic clothing, and prayed in the prescribed way despite the obvious risks.' ' The leading casebook on race and the law, Race and Races: Cases and Resources for a Diverse America, addresses the issues of discrimination This authority was amended in its second edition and included more analysis and case studies involving discrimination against Asian American The prior edition insufficiently explored the religious tensions between the races and the religious justifications for slavery The second edition draws attention to post-9/11 incidents of discrimination and harassment against American Muslims, but falls short in accessing religious tensions interrelated to existing racial discrimination.132 To ponder race in the early American context without engaging in an exhaustive discussion of religion leads to an incomplete study To ignore or underemphasize the positive and negative effects of religion is to cull a critical component of the psychology of prejudice One of the questions posed by LatCrit scholars was whether a LatCrit theoretical perspective on identity politics could offer new perspectives on how to promote the recognition and enforcement of human rights 3 Additionally, could the multiplicity and intersectionality of Latina/o identities and values, as well as the convergences and divergences in our histories and discourses of assimilation, independence, and revolution 129 See generally S.F STATE UNIV., CTR FOR INTEGRATION AND IMPROVEMENT OF JOURNALISM, African American Muslims: 1600s-The First Muslims in the UnitedStates, NEWSWATCH, http://mediaguidetoislam.sfsu.edulintheus/05amuslims.htm (last visited Apr 17, 2014) 30 See id id 132See generally RACE AND RACES: CASES AND RESOURCES FOR A DIVERSE AMERICA 131See (Juan F Perea et al eds., 2d ed 2007) 133 Elizabeth M Iglesias, InternationalLaw, Human Rights, and LatCrit Theory, 28 U MIAMI INTER-AM L REV 177, 183 (1997) VOLUME 12 * ISSUE * 2014 942 SEATTLE JOURNAL FOR SOCIAL JUSTICE shed light on traditional human rights concerns? 34 Latina/o identities intersect with Muslim identities due to shared experiences and histories as "the other." An analysis and critique of Islam and Islamic legal concepts would mesh with ongoing LatCrit studies, which challenge hegemonic legal norms Despite the US being a secular country that separates church and state, religion has dictated political and legal determinations either directly or indirectly since the Declaration of Independence was drafted.' In fact, the US Supreme Court in 1892 said that America was "a Christian nation:" If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where [sic] a clear recognition of the same truth Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, 'In the name of God, amen;' the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where [sic] under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.136 Virtually every Anglo-American historian credits the Genoese sailor with the discovery of the New World, which propagates the notion of JudeoChristian superiority Abdullah Hakim Quick responds to the widely-held historical fallacy about Islam in America, "But the history books said, 1' See id ' Holy Trinity id LATCRIT 2013: Church v United States, 143 U.S 457, 471 (1892) RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand Early America 943 'Christopher Columbus discovered America,' and the people are standing there! That's intellectual genocide! You destroy people that is what has happened in the West in order to justify the system of oppression and racism established over the past 400 years."' 37 Scholars and educational systems propagate lies to insure the implementation of oppressive tactics, with the overall goal of preserving the colonial model of understanding regarding Islam Quick is on the mark in saying that the history books commit intellectual genocide by simply attributing the discovery of America to Columbus because the systematic exclusion of the Muslim contribution is too overt to be accidental.' Loewen says, "Not one textbook mentions the West African [voyagers to the New World.] While leaving out Columbus's predecessors, American history books continue to make mistakes when they get to the last 'discoverer.' They present cut-and-dried answers, mostly glorifying Columbus, always avoiding uncertainty and controversy."' This omission of the Islamic impact in American history is a theft of the legacy of early American Muslims The historical silence implies the Muslim contribution is in some way lacking or shameful Many minority groups already suffer from marginalization.14 Dominance by one racial group is detrimental to the American psyche.141 The clash between Muslims and non-Muslims is evidenced in the varying viewpoints of Islamic civilization Muslims generally believe Islamic civilization is built on divine foundations, whereas non-Muslims generally think Islamic civilization is 37 See Abdullah Hakim Quick, Islam on Demand, Islam: Past, Present, and Future YouTUBE (Mar 25, 2011), https://www.youtube.com/watch?v=TzOv 7gxlak 38 See generally LOEWEN, supra note 11, 53-54 39 See id 140See generally MOLEFI KETE ASANTE, AFROCENTRICITY: THE THEORY OF SOCIAL CHANGE (2003) 141See generally MOLEFI KETE ASANTE, ERASING RACISM: THE SURVIVAL OF THE AMERICAN NATION (2003) VOLUME 12 * ISSUE * 2014 944 SEATTLE JOURNAL FOR SOCIAL JUSTICE grounded in ideas and practices from Judaism and Christianity.142 According to Ahmet Karamustafa, both these viewpoints are accurate in describing Islamic civilization: It is often thought that Islamic civilization took its peculiar shape through a series of complicated, evasive maneuvers that enabled it to preserve its pristine purity Muslims, it is assumed, rejected cultural influences from the outside and jealously guarded their core values from being contaminated through contact with other civilizations An influential Muslim view, perhaps the prevalent one, is that whenever and wherever they succeeded in preserving the divine kernel, Muslims flourished; whenever and wherever they succumbed to non-Islamic "contamination," they perished or lost power and became weak, even subjugated The prevalent non-Muslim view seems to be the exact opposite: Muslims gained power where and when they were willing to temper the rather uncompromising, even rigid dictates of their religion with unabashed borrowing from other civilizations and lost this power where and when they turned a blind eye to the benefits that others had to offer.14 There was an obvious intermixing among Muslims, Christians, and Jews; and that dynamic encouraged the merger of cultural and religious values Yet each religious group maintained its own distinct and unique spiritual identity Recognizing the similarities between the Abrahamic religions of Islam, Christianity, and Judaism can help to alleviate the perception of otherness toward Muslims FINAL REMARKS As demonstrated by the aforementioned evidence, Muslims have been part of the American landscape since pre-Columbian times Advocates, historians, and modern actors are challenging the notion that scholarship 142 Ahmet Karamustafa, Islam: A Civilizational Project in Progress, in MUSLIMS: ON JUSTICE, GENDER, AND PLURALISM 143 id LATCRIT2013: RESISTANCE RISING PROGRESSIVE 98, 103-104 (Omid Safi ed., 2003) The Islamic Influence in (Pre-)Colonial and Early America 945 must leave the disenfranchised in silent obscurity It is crucial to analyze historical records of early Muslim American experiences and contextualize them, looking for sociolegal constructs Discourse in the United States can be greatly enhanced by considering the true influence of Islam to the American experience Since 9/11, Islam has, for the most part, been viewed as a foreign and marauding force, both in the United States and on the international scene, evidenced by the recent surge of anti-Sharia law legislation in 32 US States.144 A careful understanding of the Islamic influences on the New World can help combat negative stereotypes and create more thoughtful dialogue on modem substantive issues regarding Muslims and Islam Muslims have witnessed dramatic increases in instances of harassment, bias, discrimination, and even hate crimes against them for the past decade or S0.145 Education and knowledge are the best tools to ward off ignorance, hatred, and fear The current political climate and the rapidly increasing number of American Muslims will invariably catalyze historians to reexamine the roles of Islam in developing this nation See generally FAIZA PATEL ET AL., BRENNAN CTR FOR JUSTICE, FOREIGN LAW BANS: LEGAL UNCERTAINTIES AND PRACTICAL PROBLEMS (2013) available at http://www.americanprogress.org/wp-content/uploads/2013/05/ForeignLawBans.pdf 145 See id VOLUME 12 * ISSUE * 2014 ... Hollen, Rali Konstantinova, Michael Lucey, Aga Saeed, Ameena Jandali, Maha Elgenaidi, Nadira Mustapha, Irfana Hashmi, Nader Hashemi, Altaf Husain, Ahmed Bedier, Christine Harding, Kristin Hoffmann,... RESISTANCE RISING The Islamic Influence in (Pre-)Colonialand Early America 923 cultivation but they were captured and chained for three days On the fourth day a translator came speaking the Arabic... LATCRIT 2013: RESISTANCE RISING The Islamic Influence in (Pre-)ColonialandEarly America 939 The prejudice against Muslims in academic scholarship is tantamount to the racism against blacks and